Nextel Communications' advert featured a man in a dentist's
chair. Stephen Gordon sued the company because his copyrighted
artwork appeared in the background.
Specifically, enlarged versions of two of his works appeared
without permission: 'Bridge,' a work that Gordon said was visible
in the advert for 10.6 seconds, and 'Root Canal,' visible, he said,
for 7.3 seconds.
The duration of visibility is relevant: in the US, the Librarian
of Congress regulates the payment of royalties by public
broadcasting entities for use of published pictorial and visual
works.
By these regulations, a "full-screen or substantially full
screen display for more than three seconds" attracts a higher
royalty rate than a "background or montage" display which appears
for three seconds or less. Lesser usage is deemed insignificant, or
de minimis.
Nextel argued that the Bridge illustration was never in focus
and appeared only briefly in the background. It added that the
illustration component of Root Canal was visible for less than a
second. Instead, the viewers' attention was drawn to the words
"root canal," which are not copyrightable.
A lower court agreed with Nextel, deeming the use de minimis.
The appeals court concurred: this was not a case of actionable
copying.
In the UK, copyright law would likely take a different approach
to achieve the same result: the Copyright Designs and Patents Act
of 1988 states that copyright in a work is not infringed by its
incidental inclusion in an artistic work, sound recording, film,
broadcast or cable programme.
